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The Montana Supreme Court has ruled unconstitutional a mandatory 35% fine that’s been on the books for certain drug cases since 1995.

The ruling Tuesday came in a case in which a couple was pulled over in 2016 in Dawson County for speeding. Troopers found 144 pounds of marijuana in the trunk and back seat.

The passenger, Ber Lee Yang, ultimately pleaded guilty to drug possession and was fined $75,600, or 35% of the market value of the drugs.

“It’s a punitive thing,” said Yang’s attorney, Penelope Strong. “It’s a knee-jerk thing.”

Yang’s case marked the second time Strong has challenged the 35% fine before the Montana Supreme Court. The fine applies to convictions for possession or storage of dangerous drugs. 

In the majority opinion signed by four justices, the court found the mandatory fine was unconstitutional in all cases because it doesn’t permit judges to consider whether the fine was excessive.

In other words, “You have to do the ‘ability to pay’ analysis before you impose this fine,” Strong said.

Outside of free speech cases, a challenge like the one brought in Yang’s case is “very rarely successful,” said University of Montana law professor Jordan Gross. That’s because the challengers are seeking to declare a law unconstitutional in every single case — a much broader finding than arguing someone’s individual rights were violated on a specific occasion. 

The court’s order said the mandatory fine, which was written into state law in 1995, stands “in stark contrast” to another state law that says a judge may not order a fine unless the defendant is able to pay it.

Strong said she’s seen the 35% fine play out differently across the state. For instance, she’s never seen it brought into play by prosecutors in Yellowstone County, but has seen it invoked in Bozeman and in Eastern Montana counties.

Usually, she and other defense attorneys “tried to negotiate it away,” she said.

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Yang qualified for a public defender and relies on social security income and food stamps.

“It was very clear she simply did not have the ability to pay this fine,” Strong said.

Gross, the law professor, said the financial burden of a criminal conviction was “an important backdrop” to the Tuesday ruling. Gross said “we keep poor people poor” through the criminal justice system.

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“You know, because if you saddle someone with this fine, is she going to pay it?” Gross said. “No, but she’s going to live her life under the shadow of it. She might be paying, like, $25 a month for the rest of her life.”

Yang’s case was charged alongside that of the driver, her ex-husband. Yang told authorities she was driving with her ex-husband from Sacramento back to Minnesota and did not discover the marijuana in the vehicle until she had already begun the drive.

The ex-husband was given a $4,000 fine and a suspended sentence. Strong actually represented the ex-husband in district court, and was able to negotiate his charges down.

Strong did not represent Yang in the original proceeding.

“But when I saw the facts of this case, to me it cried out for an appeal,” she said.

Justice Laurie McKinnon wrote the majority opinion, which was signed by Justices Mike McGrath, Jeremiah Shea and Ingrid Gustafson.

Justice Jim Rice issued a dissenting opinion, signed by Justice Dirk Sandefur.

Justice Baker wrote an opinion that partly concurred and partly dissented, which Justice Dirk Sandefur also signed.

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